Nguyen v R

Case •

[2019] NSWCCA 209

•

18 September 2019

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Nguyen v R [2019] NSWCCA 209
Hearing dates: 14 August 2019
Date of orders: 18 September 2019
Decision date: 18 September 2019
Before: Brereton JA at [1]
Johnson J at [17]
Lonergan J at [89]
Decision:

1. Grant leave to appeal against sentence.
2. Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – primary offence of cultivating not less than commercial quantity of cannabis by enhanced indoor means contrary to s.23(2)(a) Drug Misuse and Trafficking Act 1985 – two Form 1 offences of cultivation – one Form 1 offence of dealing with proceeds of crime – objective seriousness of primary offence assessed separately before taking into account Form 1 offences – no error demonstrated in assessing objective seriousness – general and specific deterrence important aspects on sentence for cultivation offences – other sentencing decisions assist but do not establish correct range – selection of cases do not include multiple cultivation offences – sentence not unreasonable or plainly unjust – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33
Anderson v Director of Public Prosecutions [1978] AC 964
Andreata v R [2015] NSWCCA 239
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Crowley v R [2017] NSWCCA 99
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hunter v R [2011] NSWCCA 141
Khoury v R [2011] NSWCCA 118
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Mun v R [2015] NSWCCA 234
Nguyen v R [2008] NSWCCA 322
Nguyen v R [2009] NSWCCA 181
Nguyen v R [2012] NSWCCA 42
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pham v R [2009] NSWCCA 266
Portolesi v R [2012] NSWCCA 157
R v Georgopoulos [2010] NSWCCA 246
R v Jones [1978] Tas SR 126
RL v R [2018] NSWCCA 274
RO v R [2019] NSWCCA 183
Tan v R [2013] NSWCCA 164
Tepania v R [2018] NSWCCA 247
Tran v R [2018] NSWCCA 220
Truong v R [2009] NSWCCA 41
Vu v R [2018] NSWCCA 122
Wei v R [2015] NSWCCA 66
Texts Cited: ---
Category:Principal judgment
Parties: Ha Son Nguyen (Applicant)
Regina (Respondent)
Representation:

Counsel:
Ms K Stares (Applicant)
Mr D Patch (Respondent)

  Solicitors:
Legal Aid, NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2017/180298
Publication restriction: ---
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
---
Citation:
---
Date of Decision:
13 July 2018
Before:
Judge Maiden SC
File Number(s):
2017/180298; 2017/251185

Judgment

  1. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Johnson J, in which the facts and the relevant remarks of the sentencing judge are recorded. I generally agree with his Honour’s reasons, but wish to add some observations concerning each ground of appeal.

Taking into account the Form 1 matters

  1. The second ground of appeal – that the sentencing judge erred by increasing the objective seriousness of the substantive offence by reason of the Form 1 offences – invoked RO v R,[1] in which Beech-Jones J, with whom Bathurst CJ and N Adams J agreed, said:

55 It is clear from this passage that in assessing the objective seriousness of the offending embraced by count 1, the sentencing judge took into consideration the conduct of the applicant in relation to the Form 1 offence described at [12] which concerned another incident at a different time. The sentencing judge found that the Form 1 offence elevated the objective seriousness of the offending.

56 This involved error at two levels. First, it is erroneous because the assessment of the objective seriousness of a criminal offence that carries a standard non‑parole period “is to be determined wholly by reference to the nature of the offending” for that offence and not other criminal conduct engaged in on a different occasion (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]).

57 Second, it is erroneous because it is inconsistent with the Sentencing Procedure Act for Form 1 offences to be considered in this manner. For present purposes, the relevance of the Form 1 offences to the exercise of the sentencing discretion for the subject offences was that they demonstrated an “additional need for personal deterrence and retribution” (Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23] (Bathurst CJ); see also at [64] (Basten JA); at [104] (Hoeben CJ at CL) and at [154] (Garling J); (“Abbas”) and Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]).

1. [2019] NSWCCA 183.

  1. It was submitted that this guidance was infringed by the following passage in his Honour’s remarks on sentence:

The question that arises in this matter is of the objective seriousness and the difficulty that this Court faces, is that on the face of it - in respect of the matter this is a relatively small cultivation and there are no other indicia such as electrical bypass arrangements that elevate the dangers to members of the public and to the secret nature of the cultivation. However what is clear is that this was a commercial operation where he was the manager of the Bankstown premises. The lease was in his name and that he was available to be involved with the other two plantations when called upon by the persons who directed him in respect of the operation. To continue in Australia where his visa has expired and where it would be difficult for him to gain full-time employment is understandable, but to be involved in criminal activities such as this does, in my mind, heighten the objective serious nature of it because it is done for his financial gain so that he can continue to remain in this country.

I find, as a matter of fact, that although this might be said to be at the low end of the range of seriousness I find that this matter, despite the relative few plants, but taking into account the matters on the form 1 document, does need serious consideration thus in respect of the offending I do find that it is somewhere between the middle and the low range of objective seriousness but to that I add the matters on the form 1 and accordingly, taking all matters into account, that would be a head sentence of six years from which I take off 25% which brings us to four and a half years and including the form 1 matters a period of 54 months and I then find that, with special circumstances, there should be a period of 33 months before he is eligible for parole. Both those matters are to be backdated to the date on which he was taken into custody which was on 16 June 2017.

  1. However, the offence in question in this case was not one which carried a standard non-parole period, and the error referred to in [56] of RO is not applicable. While in such a case a sentencing judge must still of course form a view as to the objective gravity of the offence, the strictures of Muldrock v The Queen [2] do not apply in their full rigour; in particular, it is unnecessary – and indeed may be unwise – in such a case to compare the objective seriousness of the offence with the “mid-range”. [3] That is because it is not necessary to determine where by reference to the mid-range of objective seriousness the offence sits.

    2. (2011) 244 CLR 120; [2011] HCA 39.

    3. Hunter v R [2011] NSWCCA 141 at [45] (Adams J); see also Khoury v R [2011] NSWCCA 118 at [75]–[76] (Simpson J, citing R v Georgopoulos [2010] NSWCCA 246 at [32] (Howie AJ)).

  2. The purpose of the Form 1 procedure provided for by Crimes (Sentencing Procedure Act) 1999 (NSW) s 33 is to give to a convicted offender the opportunity of re-commencing life with a clean slate once the sentence is served, so as “not to be arrested at the prison gates” for some other offence committed before the particular offence which was the cause of the conviction. [4] It offers the offender the benefit that he or she cannot be separately prosecuted and punished for those other offences, and the penalty is limited to that available for the principal offence. However, that benefit comes at the price of an increase in the penalty imposed in respect of the principal offence, above that which would have been imposed if the primary offence had stood alone. [5] Consequently, the effect of “taking into account” matters referred to in a Form 1 is to increase the penalty that would otherwise be imposed for the charged offence, having regard to the admitted other offending, but within the limits and framework of the charged offence.

    4. Anderson v Director of Public Prosecutions [1978] AC 964 at 977 (Lord Diplock); see also Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [11] (Bathurst CJ), [106] (Hoeben CJ at CL).

    5. Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [18] (Spigelman CJ); Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [22]–[23] (Bathurst CJ); see also at [106] (Hoeben CJ at CL), and at [260] (Campbell J).

  3. In Abbas, Bathurst CJ accepted Neasey J’s[6] qualification of Lord Diplock’s statement that, in effect, this involved a convicted offender being punished for other offences for which he or she had never been formally arraigned, tried or convicted and to which there had never been a formal plea of guilty:

12 It will be noted that Lord Diplock spoke of the effect being that the offender was punished for other offences for which he had never been formally arraigned, tried or convicted. As was pointed out in Attorney General's Reference at [24], the qualification on this statement expressed by Neasey J in R v Jones (1978) Tas SR 126 should be accepted. The qualification was to the following effect (at 131-132):

"The difficulty is to know to what extent, if any, the sentence may include punishment which is separately referable to the offences taken into account, as distinct from the principal offence. Some judicial statements appear to suggest that part of the sentence may be related specifically to the offences taken into account. For instance, Lord Diplock in D.P.P. v Anderson, in the passage earlier cited, said that the practice involves the offender in being punished for other offences for which he has never been arraigned, tried or convicted. Perhaps his Lordship meant that the effect is to punish the offender for the other offences even though the technical substance of the matter is that the offender may only receive an increased sentence for the principal offence, the increase being justified from considerations arising out of the existence of the other admitted offences. Again, in R. v. Batchelor, Lord Goddard L.C.J. giving judgment for the Court of Criminal Appeal said that the practice of taking other offences into account 'means that the court can give a longer sentence than it would if it were dealing with him only on the charge mentioned in the indictment. But, technically, taking offences into account does not amount to a conviction.' Margrave-Jones, op.cit., at p. 197, refers to the sentence given when this practice is adopted as a 'comprehensive sentence', covering both the substantive crime for which the prisoner stands convicted, and also the other offences which he wishes to be taken into consideration.

However, the Court of Criminal Appeal in England has clearly laid down that the sentence remains one for the principal offence only, notwithstanding the taking into account of other offences."

6. R v Jones [1978] Tas SR 126.

  1. In Attorney General's Application,[7] Spigelman CJ explained that the entire point of the process is to impose a longer sentence than would have been imposed had the primary offence stood alone, and that it was wrong to suggest that the additional penalty should necessarily be small:

[18] A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See, eg, R v White (1981) 28 SASR 9 at 13; Murrell v The Queen (1985) 4 FCR 168 at 179, per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372).

[19] These authorities focus on the sentence that is appropriate for the charge on the indictment, with a view to increasing it by reason of the Form 1 offences for which guilt has been admitted. This can be characterised as a 'bottom up' approach.

...

7. (2002) 56 NSWLR 146; [2002] NSWCCA 518; see also Abbas v R at [16].

  1. His Honour explained that although the court is sentencing for a particular (charged) offence, it takes into account the matters for which guilt has been admitted (on the Form 1), with a view to increasing the penalty that would otherwise be appropriate for the particular offence:

[40] In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, that is, the primary offence.

[41] In R v Barton (at 195 [64]), in a passage subsequently referred to in R v AEM Snr (at [81]) and R v Perese (at 522 [81]), I made some observations which I repeat.

[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

  1. In Abbas, the Court rejected the view that what Spigelman CJ had said at [42] meant that a sentence could not be increased to take into account an additional need for deterrence and retribution in respect of the charged offence by reason of the Form 1 offences being taken into account, and that the reference to retribution was a reference to retribution in respect of the offences for which the sentence was imposed, albeit in the context of other offences for which no separate punishment would be imposed. A sentencing court takes the Form 1 matters into account (as required by the statute) as part of the instinctive synthesis approach to sentencing, in determining the appropriate penalty for the offence for which the offender was convicted, and this generally, though not universally, leads to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account. Bathurst CJ (with whom Garling J and Campbell J agreed) said: [8]

22 In my respectful opinion, the approach suggested by Adams J is incorrect if it is interpreted as meaning that a sentence cannot be increased to take into account an additional need for deterrence and retribution in respect of the offences charged by virtue of the Form 1 offences being taken into account. Such an interpretation is contrary, in my opinion, to the meaning of s 33 properly construed and to what was said by Spigelman CJ in Attorney General's Reference. Section 33(1) empowers the Court to take the further offences into account where the preconditions in that section and s 32 are met. It is clear from the provisions of s 33(3) that that could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]-[54], it takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.

23 That approach would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account: R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185. …

24 That approach, in my opinion, is consistent with the judgment of Spigelman CJ in Attorney General's Reference. I have set out the relevant paragraphs of the judgment above. Spigelman CJ expressly rejected the "top down" approach to the question. At [23], his Honour stated that the statutory regime must be given effect in the context of what was decided by the High Court in De Simoni supra and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. At [42], his reference to retribution was a reference to retribution in respect of the offences for which the sentence was imposed, albeit in the context of the existence of offences for which no punishment had been imposed. Further, at [67], his Honour emphasised that the Court had a discretion whether or not to take the Form 1 offences into account.

8. See also at [52], [64] (Basten JA); [100], [104], [106] (Hoeben CJ at CL, with whom Garling J also agreed at [155]).

  1. In my view, what the sentencing judge did, in the passage which has been set out above,[9] involved two themes, although had his Honour had the luxury of time to perfect his remarks they might have been more clearly defined. First, his Honour explained that the objective seriousness of what (due to the small number of plants) might at first sight have appeared to be at the low end of the range was heightened to “somewhere between the middle and the low range” on account of its being a commercial operation in which he was the manager of the premises with the lease being in his name, and of his participation being for his financial benefit to assist him to remain unlawfully in Australia. Secondly, once the Form 1 matters – which demonstrated that the applicant had a more extensive role in the criminal enterprise than merely managing the Bankstown property, because he was available to assist elsewhere – were taken into account, a head sentence of six years was appropriate, before the utilitarian discount for the plea of guilty (in the context that the only statutory signpost was a maximum penalty of imprisonment for 15 years). Asking that the Form 1 matters be taken into account had the almost inevitable consequence that the sentence to be imposed would be greater than had it been confined only to the charged offence: those matters meant that there was a greater need for personal deterrence and retribution in respect of the offence charged, because the conduct they encompassed would not be the subject of any specific punishment by reason of their being “taken into account”.

    9. At [3].

  1. In my judgment, at least in the context of an offence which does not carry a standard non-parole period, the process undertaken by the sentencing judge does not involve error, and is not inconsistent with Attorney-General’s Reference and Abbas.

Manifest excess

  1. As to the first ground, that the sentence was manifestly excessive, Johnson J has summarised the various sentencing decisions to which the Court was referred. Particularly where there is no standard non-parole period, and the only statutory signpost is the maximum penalty, comparable cases provide the best available objective description of the reasonable “range” of available sentences, although I accept that they cannot define the limits of the range.

  2. Most of the cases referred to cluster around a head sentence of three years and non-parole periods of between 18 months and 27 months. If the applicant was being sentenced for the cultivation offence alone, I would incline to the view that the divergence of the sentence from the range described by those cases was such that it was manifestly excessive.

  3. However, it was necessary for the sentencing judge to also take into account, as he did, the Form 1 matters. Four of the cases referred to involved sentences lengthier than were imposed in the present case, and they were cases in which there was additional offending to be taken into account, in one way or another – whether on the indictment or on a Form 1. In Nguyen v R, [10] there was a total effective term of five years and six months, and a non-parole period of four years, for cultivating 105 cannabis plants and supplying approximately 3.7 kg of cannabis leaf; the indicative sentence for the cultivation offence was five years, with a non-parole period of three years and six months. In Nguyen v R, [11] a term of five years and three months with a non-parole period of three years, for cultivating 157 cannabis plants – where the offence was premeditated and motivated by greed and the offender was the instigator and had recruited others to assist – was held to be not manifestly excessive. In Portolesi v R,[12] a total effective term of five years and six months, with a non-parole period of 4 years, for cultivating 197 cannabis plants and supplying 3.37 kg of cannabis leaf, with seven additional related offences in a Criminal Procedure Act 1986 (NSW) s 166 certificate (the indicative sentence for the cultivation offence being imprisonment for five years, with a non-parole period of three years and six months) – where the cultivation offence was significantly above the middle of the range and the offender was the sole principal who stood to gain from it – was not disturbed on appeal. And in Vu v R, [13] an aggregate term of imprisonment of eight years with a non-parole period of four years, for two separate counts of cultivating cannabis (105 and 91 plants respectively), and supplying 9.4 kg of cannabis leaf (the indicative sentences for both cultivation offences being five years and six months) –where the offender was a participant with three co-offenders in a syndicate, in a middle management role which involved a higher level of trust and responsibility than the co-offenders and had undertaken the co-ordination of some of the syndicate’s activities including negotiating sale prices and directing aspects of distribution and sale of the cannabis, and where the first cultivation offence (105 plants) was at “the very upper end of the lower range” and the second (91 plants), where the offender had been the lessee, was “within the midrange” – was not erroneous. All four cases were pleas of guilty involving a utilitarian discount of 25%.

    10. [2008] NSWCCA 322.

    11. [2012] NSWCCA 42.

    12. [2012] NSWCCA 157.

    13. [2018] NSWCCA 122.

  4. While the gravity of the totality of the offending in each of the four above‑mentioned cases exceeds, to a greater or lesser extent, that in the subject case, in my view they serve to support the conclusion that, in the context of an offence for which the maximum penalty is 15 years imprisonment, and having regard to the Form 1 matters, it cannot be said that a sentence of four years and six months, including a non-parole period of two years and nine months and a balance term of one year and nine months, was manifestly excessive or unreasonable.

Disposition

  1. I agree with the orders proposed by Johnson J.

  2. JOHNSON J: The Applicant, Ha Son Nguyen, seeks leave to appeal under s.5(1) Criminal Appeal Act 1912 against a sentence imposed at the Parramatta District Court on 13 July 2018 for an offence of cultivating not less than the commercial quantity of prohibited plants by enhanced indoor means contrary to s.23(2)(a) Drug Misuse and Trafficking Act 1985 (“DMT Act”).

The Sentence and Form 1 Offences

  1. Following a plea of guilty, the Applicant was sentenced by his Honour Judge Maiden SC on 13 July 2018 to imprisonment for four years and six months with a non-parole period of two years and nine months commencing on 16 June 2017 and expiring on 15 March 2020, with a balance of term of one year and nine months expiring on 15 December 2021.

  2. The maximum penalty for this office was imprisonment for 15 years.

  3. The Applicant requested the District Court to take into account on sentence for this offence, three further offences on a Form 1:

  1. dealing with property being the proceeds of crime ($1,467.10) contrary to s.193C(2) Crimes Act 1900, an offence punishable by a maximum penalty of imprisonment for three years if prosecuted separately;

  2. cultivating not less than the commercial quantity of a prohibited plant contrary to s.23(2)(a) DMT Act, an offence punishable by a maximum penalty of imprisonment for 15 years if prosecuted separately (s.33(2)(b) DMT Act); and

  3. cultivating a prohibited plant (cannabis) contrary to s.23(1)(a) DMT Act, an offence punishable by a maximum penalty of imprisonment for 10 years if prosecuted separately (s.32(1)(h) DMT Act).

Grounds of Appeal

  1. The Notice of Application for Leave to Appeal against sentence filed on 3 May 2019 contained one ground of appeal, a claim that the sentence imposed was manifestly excessive.

  2. At the hearing of the application on 14 August 2019, the Applicant was granted leave to add a further ground of appeal.

  3. The Applicant’s grounds of appeal are:

  1. Ground 1 - the sentence imposed is manifestly excessive;

  2. Ground 2 - the sentencing Judge erred by increasing the objective seriousness of the substantive offence by reason of the Form 1 offences.

Facts of Offences

  1. An Agreed Statement of Facts was tendered at the sentencing hearing from which the following account is drawn.

Property at 1 Chelmsford Avenue, Bankstown

  1. In 2016, the owner of a residential property at 1 Chelmsford Avenue, Bankstown (“the Bankstown property”) sought a tenant for that property. The Applicant applied to rent the property and agreed to a month-to-month lease, at $600.00 per week. The Applicant paid a bond of four weeks’ rent together with two weeks’ rent in advance at the commencement of the lease. The Applicant was handed the keys to the property on 10 November 2016.

  2. After that date, an enhanced indoor hydroponic system was installed at the Bankstown property in order to cultivate cannabis plants. The Applicant’s role in the cultivation involved preparation of nutrient-enriched water for the plants and watering the plants.

  3. On 16 June 2017, police executed a search warrant at the Bankstown property and located:

  1. a total of 69 cannabis plants spread throughout four rooms, 21 of which were over one metre in height and 48 of which were under one metre in height;

  2. hydroponic equipment comprising a total of 32 shades, 49 transformers, 52 globes and two power boards spread through five rooms in the property; and

  3. a water filtration system set up in the bathroom which supplied water to other rooms.

  1. The Applicant was present at the Bankstown property at the time of the execution of the search warrant and was arrested at that time. Police found in his possession an Apple iPhone and a wallet containing $1,467.10 cash (the s.193C(2) offence on the Form 1).

  2. When interviewed by police, the Applicant admitted that he was there “taking care of the plants” by watering them and feeding the cannabis “plant food” a few days per week. He said he was paid $9,000.00 to look after the plants for the first three months. The Applicant stated that he had been there for four months. The Court Attendance Notice identified the Bankstown property as the Applicant’s address.

  3. The Applicant consented to a forensic procedure whereby a DNA sample was taken by police which was later matched to two other properties.

Property at 6 Osborne Street, Dapto

  1. On 29 September 2015, a lease commenced with respect to a two-storey commercial property at 6 Osborne Street, Dapto (“the Dapto property”). The name of the tenant of the Dapto property was later found to be fictitious.

  2. On 26 February 2016, a real estate agent attended the Dapto property after receiving complaints from neighbours about noise from the external fans. When the agent attempted to open the premises, he saw a sign in the shed which said “Hydro Set Up”. The agent immediately contacted police who attended a short time later.

  3. Police used a key provided by the agent to enter the Dapto property where they found a cannabis hydroponic set up. The scene was secured and a search warrant was granted for the search of the premises.

  4. Police found various rooms which all contained a substantial number of cannabis plants. Within the premises was a hydroponic set up consisting of an extensive number of extension leads, power sources and heating and light sources within each room.

  5. In total, 211 cannabis plants were identified when the search warrant was executed. Of these, 72 plants were juvenile and the remaining 139 plants were more established. The proceedings were conducted on the basis that this Form 1 offence involved cultivation of 139 plants.

  6. A forensic examination of the Dapto property was undertaken which revealed the DNA profile of the Applicant on a cigarette butt which had been discarded at the scene. In addition, two of the Applicant’s fingerprints were located on a lampshade inside the property.

  7. On 15 August 2017, the Applicant was interviewed by police and made frank admissions. He said that he had been at the Dapto property for one day only to harvest the plants, but told police “I have nothing to do with the house”.

  8. It was an agreed fact with respect to the Dapto property that the Applicant was at that property on one occasion only, together with other workers, to harvest the plants for which he was paid $500.00. This occurred on a day between 29 September 2015 and 26 February 2016 (the s.23(2)(a) DMT Act offence on the Form 1).

177 Gilmore Road, Queanbeyan West

  1. On 7 September 2016, police executed a search warrant at detached industrial premises located at 177 Gilmore Road, Queanbeyan West (“the Queanbeyan West property”). Upon entry, police observed a dismantled hydroponic plantation set up. The windows were covered and many items commonly used in the enhanced indoor cultivation of cannabis plants were located. Police found a large number of boxes with charcoal filters, a large number of discarded plastic pots, piles of dirt and root systems, disconnected black irrigation systems, light shades, piles of timber, a bottle of liquid fertiliser and torn down ducting.

  2. Police seized numerous items including a black garbage bag containing green vegetable matter which was later analysed and found to be 369.7 grams of cannabis.

  3. A used cigarette butt and face mask were located at the scene. DNA profiles were obtained from the cigarette butt and the face mask, and both matched the Applicant.

  4. In a police interview on 15 August 2017, the Applicant made admissions regarding his involvement at the Queanbeyan West property. He said it was “the same thing” as with the Dapto property in that he assisted in harvesting plants for the same payment, the sum of $500.00. With respect to this property, the Applicant said he had been there working for two days.

  5. It was an agreed fact that the Applicant was at the Queanbeyan West property for two consecutive days only, together with other workers, to harvest the plants for which he was paid $500.00 and that this occurred in the period between 13 August 2015 and 7 September 2016 (the s.23(1)(a) offence on the Form 1).

  6. The Applicant has been in continuous custody with respect to these matters since his arrest on 16 June 2017.

  7. At all relevant times, the commercial quantity of cannabis plants cultivated by enhanced indoor means was 50 plants.

The Applicant’s Subjective Circumstances

  1. The Applicant was 27 years old at the time of the offences and 28 years old at the time of sentence. He has no criminal history in Australia.

  2. The Applicant did not give evidence at the sentencing hearing.

  3. A presentence report dated 9 July 2018 was obtained for the sentencing proceedings in the District Court. In addition, a report of Mr Tim Watson-Munro, psychologist, dated 9 July 2018, was tendered in the defence case on sentence.

  4. According to the presentence report, the Applicant completed the equivalent of Year 12 in Vietnam and came to Australia to study design at the University of Queensland, his tuition having been paid for by his parents. He stated that he ceased this study and worked briefly in restaurant and retail positions before ceasing that employment to engage in conduct giving rise to these offences.

  5. The author of the presentence report noted that the Applicant “gave minimal information that could not be verified” and that he did not “take personal responsibility for his offence as he blames his financial situation”. The presentence report stated that the Applicant said he understood “the impact of his crime on the potential victims in the Australian community” and that “his crime was to fund his everyday life expenses”.

  6. The report of Mr Watson-Munro stated that the Applicant did not suffer from any major psychiatric condition. Through his discussions with the Applicant and results of psychometric testing, Mr Watson-Munro assessed the Applicant as experiencing a severe depressive disorder, no doubt flowing from his custodial position.

  7. The Applicant is an unlawful non-citizen and will be liable to deportation when released from custody.

The Second Ground of Appeal - Error in Use of Form 1 Offences

  1. It is appropriate to deal firstly with the second ground of appeal which was added at the hearing in this Court.

Submissions

  1. In support of this ground of appeal, Ms Stares, counsel for the Applicant, pointed to the following passage in the sentencing remarks (ROS5-6):

“The question that arises in this matter is of the objective seriousness and the difficulty that this Court faces, is that on the face of it - in respect of the matter this is a relatively small cultivation and there are no other indicia such as electrical bypass arrangements that elevate the dangers to members of the public and to the secret nature of the cultivation. However what is clear is that this was a commercial operation where he was the manager of the Bankstown premises. The lease was in his name and that he was available to be involved with the other two plantations when called upon by the persons who directed him in respect of the operation. To continue in Australia where his visa has expired and where it would be difficult for him to gain full-time employment is understandable, but to be involved in criminal activities such as this does, in my mind, heighten the objective serious nature of it because it is done for his financial gain so that he can continue to remain in this country.

I find, as a matter of fact, that although this might be said to be at the low end of the range of seriousness I find that this matter, despite the relative few plants, but taking into account the matters on the form 1 document, does need serious consideration thus in respect of the offending I do find that it is somewhere between the middle and the low range of objective seriousness but to that I add the matters on the form 1 and accordingly, taking all matters into account, that would be a head sentence of six years from which I take off 25% which brings us to four and a half years and including the form 1 matters a period of 54 months and I then find that, with special circumstances, there should be a period of 33 months before he is eligible for parole. Both those matters are to be backdated to the date on which he was taken into custody which was on 16 June 2017.”

  1. Relying upon RO v R [2019] NSWCCA 183 at [53]-[60], counsel for the Applicant submitted that the sentencing Judge had erred in using the Form 1 offences for the purpose of making an assessment of the objective seriousness of the primary offence for which sentence was to be imposed.

  2. The Crown submitted that the sentencing Judge had not erred in this way and that a fair reading of the sentencing remarks indicated that a finding of objective seriousness of the primary offence was made before his Honour took into account the Form 1 offences.

Decision

  1. It was necessary for the sentencing Judge to make a finding as to objective seriousness with respect to the primary offence although it was not a standard non-parole period offence: Tepania v R [2018] NSWCCA 247 at [112].

  2. It may be accepted that a sentencing Judge should assess the objective seriousness of the primary offence separately before taking into account Form 1 offences for the purpose of sentence. Although the ultimate sentencing decision should have regard to the total criminality involved, different pathways are to be followed to bring about this result.

  3. From time to time, Form 1 offences are closely linked to the primary offence itself, often involving other offences committed at about the same time. In the present case, the s.193C(2) Crimes Act 1900 offence on the Form 1 was associated with the primary offence given that the sum of money involved was located at the Bankstown property. The second and third Form 1 offences involved the Applicant’s separate criminality in the form of cultivation of prohibited plants at two different properties at different times.

  4. In taking into account the Form 1 matters on sentence for the primary offence, the penalty imposed for that offence could not exceed the maximum penalty of imprisonment for 15 years: s.33(3) Crimes (Sentencing Procedure) Act 1999.

  5. In taking the Form 1 matters into account, a sentencing Judge has regard to the Form 1 offences with a view to increasing the penalty that would otherwise be appropriate for the primary offence. The sentencing Judge ought give greater weight to the need for personal deterrence and the community’s entitlement to exact retribution for serious offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 425-426 [22]. This approach will generally lead to the imposition of a longer sentence than would otherwise be required if the Form 1 offences were not taken into account: Abbas v R at 426 [23]; RL v R [2018] NSWCCA 274 at [53]-[57]. The sentencing Court does not impose a distinct penalty for the Form 1 offences and it is not appropriate to quantify the period or periods which may attach to those offences in taking them into account on sentence for the primary offence: Abbas v R at 421 [14], 425-426 [22]. Given the nature of the Form 1 offences in this case, it may be taken that a longer sentence was appropriate to give effect to these principles.

  6. In considering whether his Honour erred in the manner asserted in this ground of appeal, it is necessary to read fairly his Honour’s sentencing remarks. I am not persuaded that his Honour took into account the Form 1 offences in making an assessment of the objective seriousness of the primary offence.

  7. In the passage set out at [39] above, his Honour referred to features of the offences committed by the Applicant. Although his Honour’s language was somewhat infelicitous, it was made clear that, having made a finding that the primary offence lay “somewhere between the middle and the low range of objective seriousness”, his Honour then moved to “add the matters on the Form 1”. The present case is to be distinguished from RO v R, where the sentencing Judge expressly took into account the Form 1 matters for the purpose of making a finding as to the objective seriousness of the primary offence: RO v R at [54].

  1. A fair reading of his Honour’s sentencing remarks indicates that the approach adopted was to assess the objective seriousness of the primary offence and then to make an additional unquantified allowance for the Form 1 offences. This approach is not erroneous (see [46] above).

  2. I would reject the second ground of appeal.

The First Ground of Appeal - The Sentence was Manifestly Excessive

Submissions

  1. Ms Stares submitted that the sentence was manifestly excessive. It was submitted that the objective seriousness of this offence should properly be characterised as being in the low range of objective seriousness. Counsel contended that the position was not affected materially by the Form 1 offences which would have increased the sentence to be imposed “by weeks or months rather than years” because of their low objective seriousness and short period of offending.

  2. It was submitted that the role of the Applicant with respect to the primary offence, taken with his prospects of rehabilitation and suggested remorse, and after consideration of sentences imposed in other matters, ought lead the Court to conclude that the sentence was manifestly excessive.

  3. The Crown submitted that the sentencing Judge’s finding was that the primary offence was somewhere between the middle and the low range of objective seriousness to which it was necessary to add the matters on the Form 1.

  4. It was submitted for the Crown that that finding by the sentencing Judge was open in this case and warranted the sentence ultimately arrived at by the District Court.

  5. The Crown submitted that the sentencing Judge had not made a finding of remorse favourable to the Applicant and that this was understandable given the absence of evidence from the Applicant and the contents of the presentence report.

  6. The Crown submitted that care is required having regard to sentencing statistics given the variations between different cases. It was submitted as well that consideration of other sentencing decisions of this Court did not assist the Applicant in his claim of manifest excess.

Decision

  1. In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

*   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

*   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

*   It is not to the point that this Court might have exercised the sentencing discretion differently.

*   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

*   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

  1. The Applicant’s offence with respect to the Bankstown property was a somewhat unusual one. He was not a person who attended the property from time to time to care for the growing plants. He was the tenant of the Bankstown property with what was said to be a short-term but apparent managerial or custodial role concerning the cannabis crop growing by enhanced indoor means in that property. This distinguishes the Applicant’s case from many other sentencing decisions for offences of this type.

  2. In addition, the Applicant had significant offences to be taken into account on the Form 1 with respect to the Dapto property and the Queanbeyan West property.

  3. The Applicant was not an occasional part-time helper at one property only. He was engaged at the Bankstown property between November 2016 and June 2017 with limited part-time cultivation tasks as well at properties significantly distant from the Bankstown property on three days between August 2015 and September 2016. Although the Applicant’s involvement in offences at the Dapto property and the Queanbeyan West property were for short periods only, they revealed a broader and more varied function on his part with respect to three different properties. When arrested, the Applicant had a not insignificant sum of money in his wallet at the Bankstown property which was also taken into account on the Form 1 by way of the proceeds of crime offence.

  4. The Form 1 offences related to separate quantities of prohibited plants being cultivated at different premises and reflected the Applicant’s greater criminal activity with respect to those separate properties so that there was an additional need for deterrence and retribution in sentencing the Applicant for the primary offence. The Form 1 offence at the Dapto property involved a commercial quantity of cannabis plants cultivated by enhanced indoor means.

  5. In sentencing the Applicant, it was necessary for the Court to have regard to the objects of the legislation concerning hydroponic cultivation of cannabis crops as noted by this Court in Tran v R [2018] NSWCCA 220 at [79]:

“It may be seen from the second reading speech that the mischief to which the 2006 legislation was directed included the suppression of organised criminal activity, whereby extremely valuable cannabis crops could be cultivated in residential or commercial premises in urban areas utilising hydroponic cultivation measures and illegally diverted electricity. The legislation was directed at suppressing a lucrative market where valuable crops were cultivated in places which were effectively hidden in plain sight in urban communities ...”

  1. As it happens, the crop at the Bankstown property was “hidden in plain sight” in an urban community whilst the crops at the Dapto property and Queanbeyan West property were located in regional centres.

  2. Both specific and general deterrence were important aspects on sentence in this case. In Tran v R, the Court said at [158]:

“Both specific deterrence and general deterrence play an important part on sentence for this class of offending as does the need for adequate punishment and denunciation of the offending conduct: s.3A(a), (b) and (f) Crimes (Sentencing Procedure) Act 1999. Persons who commit these offences do so for the purpose of substantial financial gain and there is a significant level of organisation involved concerning the selection and use of both residential and commercial premises for these illegal purposes ...”

  1. The Applicant did not give evidence at the sentencing hearing. He made admissions to police in circumstances where there was already evidence which linked him to each of the three properties. The Applicant’s statements to the author of the presentence report indicated a limited level of insight into his offending.

  2. This Court has observed that assessment of the genuineness and value of remorse is likely to be better informed in circumstances where it is expressed directly by an offender to the Court, as remorse is an intrinsically subjective matter, the evaluation of which depends on the subtleties of human interaction: Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 at [44]; Mun v R [2015] NSWCCA 234 at [39].

  3. The limited number of sentencing decisions referred to by the parties provide illustrations of sentencing outcomes in other cases. More will be said shortly about these decisions. A history of sentencing can establish a range of sentences that have in fact been imposed, but that history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54]. These other sentencing decisions assist as examples of sentences imposed in their own particular circumstances. However, the applicable legislative guidepost is the maximum penalty of imprisonment for 15 years: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. The Form 1 offences were to be taken into account as well in accordance with the principles referred to earlier (at [46]).

  4. From the selection of cases presented by both the Crown and the Applicant, Vu v R [2018] NSWCCA 122 is the only case where an offender was sentenced for multiple offences contrary to s.23(2)(a) DMT Act. However, it should be observed that in Vu v R, both s.23(2)(a) offences were on the indictment, in contrast to this case, where one of the offences was on a Form 1. Further, in none of the cases listed below, was there a further offence (on the indictment or on a Form 1, or a s.166 certificate) of cultivating a prohibited plant contrary to s.23(1)(a) DMT Act. In the majority of the cases, if there were additional offences, such offences related to either supplying the cannabis leaf harvested from the cultivation offence, or conduct which could be described as assisting the primary cultivation offence, including (for example) the manipulation of the electricity supply or setting up the premises.

  5. The following is a summary of the sentencing decisions identified by both the Crown and the Applicant:

  1. In Nguyen v R [2008] NSWCCA 322 (“Nguyen v R 2008”), the offender pleaded guilty to cultivating 105 cannabis plants, and supplying approximately 3.7 kg of cannabis leaf. The sentencing Judge found that the offending was “somewhere about middle range”: [22]-[25]. The offender was sentenced to a total effective term of five years and six months, with a non-parole period of four years. The sentence for the cultivation offence was five years, with a non-parole period of three years and six months. The sentences were not disturbed on appeal: [33].

  2. In Truong v R [2009] NSWCCA 41, the offender pleaded guilty to cultivating 189 cannabis plants. The sentencing Judge found that the offender was “engaged in a substantial illegal commercial venture” and her criminality “fell a little below the middle range of offences”: [9], [11]. On appeal, it was argued that the offender was a “mere crop sitter”, however, this submission was rejected, because even if she did not “initiate the enterprise she took it over and maintained the activity … for profit”: [13]. The offender was sentenced to imprisonment for three years and six months, with a non-parole period of 18 months, and this was not disturbed on appeal: [16].

  3. In Nguyen v R [2009] NSWCCA 181 (“Nguyen v R 2009”), the offender pleaded guilty to cultivating 172 cannabis plants. The offender was working on a farm, when someone had told her to “look after a house” in exchange for financial gain and accommodation. Accordingly, the offending was “premeditated and for financial gain”, but there was “no evidence that she was the principal offender”: [17]-[18]. Rather, the offender was “tending the plants and effectively guarding them” (at [18]). In allowing the appeal, the offender was resentenced to three years’ imprisonment with a non-parole period of one year and 10 months: [60].

  4. In Pham v R [2009] NSWCCA 266, the offender pleaded guilty to two offences, being cultivation of 112 cannabis plants, and organising/conducting/assisting drug premises. An offence of alter, add to electricity installation without authority was taken into account on a Form 1 on the cultivation offence. The sentencing Judge found that the offending was “serious”, but his role was at a “relatively low level”. He did not bypass the meter nor construct the room. The sentencing Judge accepted that the offender was a “babysitter” for the crop, and played this role for financial gain: [7]. The offender was sentenced to three years’ imprisonment with a non-parole period of 18 months (with the organising/conducting/assist offence made wholly concurrent): [5]. The sentence was not disturbed on appeal: [27].

  5. In Nguyen v R [2012] NSWCCA 42 (“Nguyen v R 2012”), the offender pleaded guilty to cultivating 157 cannabis plants. The offence was “premeditated and motivated by greed”: [21]. The sentencing Judge found that the offender was “clearly the instigator” and had “recruited [his co-offenders] to assist”: [22]. Davies J (with whom McClellan CJ at CL and Garling J agreed) summarised the above four cases (Nguyen v R 2008, Nguyen v R2009, Pham v R, and Truong v R) and concluded that no manifest excess had been demonstrated: [35]-[39]. The offender was sentenced to a term of imprisonment of five years and three months, with a non-parole period of three years. The appeal, principally founded on the disparity of the sentences between himself and his co-offenders, was dismissed: [40].

  6. In Portolesi v R [2012] NSWCCA 157, the offender pleaded guilty to cultivating 197 cannabis plants, and supplying 3.37 kg of cannabis leaf. There were seven additional related offences set out in a s.166 Criminal Procedure Act certificate. The sentencing Judge found that the cultivation offence was “significantly above the middle of the range”, and that he was the “sole principal involved in this enterprise”, who “stood to gain from it”: [27]. The offender was sentenced to a total effective term of five years and six months, with a non-parole period of four years. The indicative sentence for the cultivation offence was imprisonment for five years, with a non-parole period of three years and six months: [4]-[5]. These sentences were not disturbed on appeal: [71].

  7. In Tan v R [2013] NSWCCA 164, the offender pleaded guilty to cultivating 53 cannabis plants. An offence of possess cannabis was taken into account on a Form 1. The offender “admitted that he was the principal” and that he had “personally purchased all the equipment [and] diverted electricity” to cultivate the plants: [7]. Following a successful appeal, the offender was resentenced to imprisonment for three years, with a non-parole period of two years and two months: [30].

  8. In Wei v R [2015] NSWCCA 66, the offender pleaded guilty to cultivating 135 cannabis plants. Two offences, being deemed supply of 833 g of cannabis leaf and consume electricity without authority, were taken into account on a Form 1: [3], [10]. The offender was “no more than a gardener and lodger who had been used as a pawn by those who stood to profit from the venture”: [33]. In allowing the appeal on the basis that the offender ought to have received a discount, the Court sentenced the offender to imprisonment for two years and seven months, with a non-parole period of 18 months: [36].

  9. In Andreata v R [2015] NSWCCA 239, the offender pleaded guilty to cultivating “somewhere between … about 50 and … 133” cannabis plants, and supplying 2.45 kg of cannabis leaf: [3], [17]. The sentencing Judge had accepted that the offender’s role was “limited”, and that only a “relatively small number of plants … were being cultivated in excess of the commercial quantity”: [38]. On appeal, Beech-Jones J (with whom Ward JA and Adams J agreed) adopted Davies J’s analysis in Nguyen v R 2012, and also considered the decision in Tan v R: [39]-[47]. In allowing the appeal, having found manifest excess on both offences, the Court resentenced the offender to a fixed term of imprisonment of 12 months for the supply offence, and imprisonment of three years, with a non-parole period of 18 months for the cultivation offence (made partially cumulative on the supply offence): [54]-[55].

  10. In Crowley v R [2017] NSWCCA 99, the offender pleaded guilty to cultivating 128 cannabis plants, and on a s.166 certificate, to two offences of possess prohibited drug (20 g of cannabis seeds and 2.64 kg of cannabis leaf). The sentencing Judge found that the offender’s criminality fell in the “mid range”: [37]. The offender had argued that his cultivation of cannabis was for “personal use”, but the sentencing Judge had found that he was “ready to supply”: [22], [38]. The offender was sentenced to a term of imprisonment of three years, with a non-parole period of two years. The Court held that the sentencing Judge did not err with her findings, and dismissed the appeal against sentence: [46].

  11. In Kresovicv R [2018] NSWCCA 37, the offender pleaded guilty to cultivating 57 cannabis plants and supplying a prohibited drug (approximately 6.7 kg of cannabis). An offence of consume electricity without consent was taken into account on a Form 1 on the cultivation offence, and an offence of organise drug premises was placed on a s.166 certificate: [2]-[4]. With respect to the cultivation offence, the sentencing Judge “assessed the level of criminality as closer to the midpoint between the low range and mid range of objective seriousness” (at [16]), as he was the “principal in the cultivation [who] … did all the planting … set up the entire cultivation … [and] maintaining the plants.” He had also “set up the electrical bypass and other electric installations”: [15]. The offender received an aggregate sentence of imprisonment for three years, with a non-parole period of one year and 10 months, with the indicative sentence for the cultivation offence being one of two years and nine months. The appeal against sentence was dismissed: [34], [47].

  12. In Vu v R, the offender pleaded guilty to two separate counts of cultivating cannabis (91 and 105 plants), and to supplying a prohibited drug (9.4 kg of cannabis leaf). The offender received an aggregate term of imprisonment of eight years, with a non-parole period of four years. The indicative sentences for both cultivation offences were identical, being five years and six months: [28]. The sentencing Judge found that the offender had taken part in a syndicate alongside three co-offenders, and that the offender had “undertook the role of co-ordinating some of the syndicate’s activities including negotiating sale prices …” and “direct[ing] aspects of distribution and sale of the cannabis”: [13]-[17]. Accordingly, her role was “some sort of mid management role that involved a level of trust and responsibility within the syndicate that was higher than the [other three co-offenders]”: [25]. With respect to the first cultivation offence (105 plants), the sentencing Judge had found that this fell at “the very upper end of the lower range”: [40], and the second cultivation offence (91 plants), where the offender had been the lessee, was “within the midrange”: [26], [40]. In dismissing the appeal, the Court held that there was no error in either the indicative sentences or the aggregate sentence: [47], [73]

  1. In all the circumstances of the present case, it was open to the sentencing Judge to impose the sentence selected in this case having regard to the objective seriousness of the primary offence and the additional serious Form 1 offences involving the Applicant’s role in drug cultivation at two other properties.

  2. The Applicant has not succeeded in demonstrating that the sentence imposed was unreasonable or plainly unjust. The sentence imposed at first instance was not manifestly excessive.

  3. I would reject the first ground of appeal.

  4. I propose the following orders:

  1. grant leave to appeal against sentence;

  2. appeal against sentence dismissed.

  1. LONERGAN J: I agree with Johnson J.

**********

Endnotes

Decision last updated: 18 September 2019

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Cases Citing This Decision

5

R v Chipp (a pseudonym) [2024] NSWDC 187
R v Maalla [2024] NSWDC 4
R v Haddad [2023] NSWDC 393
Cases Cited

40

Statutory Material Cited

3

Muldrock v The Queen [2011] HCA 39
Du Randt v R [2008] NSWCCA 121
Muldrock v The Queen [2011] HCA 39